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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1683 OF 2010

Jodhan ... Appellant

Versus

State of M.P.        ... Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal calls in question the defensibility  

and the legal sustainability of the Judgment of conviction  

and order of sentence passed by the Division Bench of the  

High  Court  of  Madhya  Pradesh,  Bench  at  Gwalior  in  

Criminal Appeal No. 214 of 1995 whereby the High Court  

has dislodged the Judgment of acquittal recorded by the  

learned  Additional  Sessions  Judge  in  respect  of  all  the  

accused persons including the present appellant for  the  

offences  punishable  under  Sections  302,  323,  324 read

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with Sections 149 of the Indian Penal Code (IPC) and 148  

IPC and proceeded to sentence each of the accused under  

Section  302 read with  Section  149 of  IPC  and imposed  

rigorous  imprisonment  for  life  along  with  separate  

sentences for other offences with the stipulation that all  

the  sentences  would  be  concurrent.    Be  it  noted,  the  

appellant  and  one  Mangal  Singh  were  also  tried  under  

Sections 3 and 4 of the Explosive Substances Act, 1908.

2. The facts which are essential to be exposited for the  

disposal  of  this appeal are that on 7.1.1984 about 9.00  

a.m.  when  Ratta,  PW-7,  was  at  his  home,  the  accused  

persons,  namely,  Mangal  Singh,  Babbu,  Jodhan,  

Kanchhedi,  Bhinua,  Ramswaroop and Natthu and others  

came there armed with lathis, farsa and handmade bombs  

and started abusing Ratta and his  family  members and  

exhorted  that  they  would  not  leave  the  Kumharwalas  

alive.  As alleged, Kanchhedi  assaulted  Rukmanibai on  

her  left  hand with  farsa,  Jodhan,  the  present  appellant,  

caused  injury  in  the  right  leg  of  Heeralal,  PW-16,  by  

throwing a handmade bomb at him and accused Mangal  

Singh threw a handmade bomb on the chest of Siriya alias  

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Shriram as a result of which he received serious injuries.  

Other accused persons used lathi in the incident.  As the  

prosecution story proceeds, Ratta lodged an FIR, Ex. P/24,  

on 7.1.1984 about 12.15 p.m. and by that time Siriya @  

Shriram  had  already  succumbed  to  the  injuries.   The  

injured  persons  were  medically  examined  and  on  

requisition by the investigating agency postmortem was  

carried  out.  The  investigating  agency  in  the  course  of  

investigation  prepared  the  spot  map,  collected  the  

bloodstained soil from the place of incident, and further,  

as is demonstrable, on being led by the accused persons  

seized the weapons, namely, lathi,  farsa and handmade  

bombs  and,  thereafter,  sent  the  seized  articles  to  the  

chemical examiner for analysis.  The investigating officer  

recorded the statements of the witnesses and eventually  

placed  the  chargesheet  in  the  court  of  Chief  Judicial  

Magistrate, Vidisha, who, in turn, committed the matter to  

the Court of Session, Vidisha.   

3. The  learned  trial  Judge  framed  charges  under  

Sections 302, 323, 324 read with Sections 149 and 148 of  

IPC  against  all  the  accused  persons  and  an  additional  

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charge  under  Section  324  IPC  against  the  accused  

Kanchhedi  and  under  Sections  3  and  4  of  Explosive  

Substances Act against Jodhan and Mangal Singh.  

4. The accused persons pleaded not guilty and took the  

plea of false implication.  It was the further case of the  

accused  persons  that  the  informant  and  others  had  

confined Babbu Khangar in a room and assaulted him and  

because of the injuries inflicted on Babbu he expired later  

on.   

5. In order to establish the charges levelled against the  

accused persons the prosecution examined as many as 16  

witnesses and marked number of documents as Exhibits.  

During trial Mishri, PW-1, Harnam Singh, PW-3, Tulsa Bai,  

PW-4  and  Hazrat  Singh,  PW-5,  did  not  support  the  

prosecution story  and accordingly were declared hostile  

by  the  prosecution.   The  learned  trial  Judge  while  

appreciating  the  evidence  on  record  noted  certain  

discrepancies, expressed doubt about the testimony of the  

witnesses who had deposed in favour of the prosecution,  

referred to the cases pending in the Court, the free fight  

between the parties, absence of satisfactory explanation  

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by the prosecution as regards the injuries sustained by the  

accused persons, the absence of independent evidence on  

record  and  accordingly  disbelieved  the  story  of  the  

prosecution and acquitted all the accused persons.    

6. At this juncture, it is worthy to note that one Babulal  

who was arraigned as an accused in the FIR died before  

the chargesheet could be filed and, therefore, six accused  

persons faced the trial.   

7. Being dissatisfied with the judgment of acquittal, the  

State  preferred  the  criminal  appeal  against  the  six  

accused  persons.   During  the  pendency  of  the  appeal  

Mangal Singh expired and the appeal stood abated against  

him.  The High court reappreciated the evidence on record  

and opined that the view expressed by the learned trial  

Judge was totally incorrect and could not be regarded as a  

plausible  one  and,  accordingly,  reversed  the  same  and  

recorded the conviction and imposed the sentence as has  

been  stated  hereinbefore.   Hence,  the  present  appeal.  

Except the present appellant, the other accused persons  

have not preferred any appeal.      

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8. We have heard Mr. Varinder Kumar Sharma, learned  

counsel  for  the  appellant  and  Mr.  C.D.  Singh,  learned  

counsel for the respondent.  

9. It  is  submitted by Mr.  Sharma,  learned counsel  for  

the appellant that the High Court while unsettling an order  

of acquittal should exercise the appellate power with great  

care and caution and it must be for substantial compelling  

reasons  and  the  appellate  court  should  not  reverse  a  

judgment  of  acquittal  unless  it  finds  that  the  same  is  

totally perverse and wholly unsustainable.  It is put forth  

by him that in the instant case the learned trial Judge had  

analysed the evidence brought on record in an appropriate  

manner,  noted the discrepancies and contradictions and  

hence, the view expressed by him, being a plausible one,  

there was no warrant or  justification on the part  of the  

High Court to interfere with the same.  Learned counsel  

would submit that the witnesses who have been placed  

reliance upon by the High Court are interested witnesses  

being family members of the informant and when all other  

independent witnesses have not deposed in favour of the  

prosecution the view expressed by the trial court deserved  

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acceptation.    It  is  contended  by  Mr.  Sharma,  that  the  

prosecution has failed to explain why other eye witnesses  

who were present at the spot were not examined and such  

non-furnishing  of  explanation  having  not  been  properly  

appreciated by the High Court, the judgment of reversal is  

unsustainable.    It is also contended by Mr. Sharma that  

when  the  appellant  had  not  caused  any  injury  on  the  

deceased,  he  should  not  have  been  convicted  under  

Section 302 IPC, for he would be liable for his overt act  

only and not for others.    

10. Mr. C.D. Singh, learned counsel for the State would  

submit  that  the  findings  recorded  by  the  learned  trial  

Judge  are  not  founded  on  proper  appreciation  of  the  

evidence on record and,  in  fact,  they are perverse and  

totally untenable and, therefore, the High Court is justified  

in interfering with the judgment.  It is urged by him that  

the  view of  acquittal  as  expressed  by  the  learned  trial  

Judge  cannot  be  regarded  as  a  plausible  one.   The  

discrepancies  and  the  contradictions  that  have  been  

perceived by the learned trial  judge, submits Mr.  Singh,  

are absolutely minor and they really do not even create a  

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mild  dent  on  the  prosecution  version.   It  is  his  further  

submission  that  the  principal  witnesses  who have been  

nomenclatured as interested witness are the close family  

members who had witnessed the occurrence and further  

they  had  sustained  injuries  in  the  incident,  and  hence,  

there  is  no  reason  for  disbelieving  their  testimony.  

Learned counsel has contended that when the prosecution  

has been able  to  establish  the case beyond reasonable  

doubt on the basis of the evidence brought on record its  

version  could  not  have  been  thrown  overboard  on  the  

ground that  other  independent  witnesses  had not  been  

examined, for it  is  open to the prosecution even not to  

examine a material witness under certain circumstances  

and in the instant case nothing has been pointed out by  

the accused persons to show that  the witness was one  

such  material  witness  without  whose  evidence  the  

prosecution  version  was  bound  to  collapse  or  flounder.  

Lastly, it is canvassed by Mr. Singh that when the accused  

persons formed an unlawful assembly, Section 149 gets  

squarely attracted and in that circumstance the appellant  

cannot be permitted to advance an argument that he is  

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not liable to be convicted under Section 302 IPC as he had  

not assaulted the deceased.   

11. To appreciate the submissions raised at the bar, we  

think it relevant to deal with the power of the appellate  

court  while  exercising  the  appellate  jurisdiction  against  

the  judgment  of  acquittal.  This  Court  in Gamini  Bala  

Koteswara Rao v. State of A.P.1 has held that it is well  

settled  in  law  that  it  is  open  to  the  High  Court  to  

reappraise  the  evidence  and  conclusions  drawn  by  the  

trial court but only in a case when the judgment of the  

trial court is stated to be perverse. The word ‘perverse’ in  

terms  as  understood  in  law  has  been  defined  to  mean  

‘against the weight of evidence’.   In  Kallu v.  State of  

M.P.2, it has been held that if the view taken by the trial  

court  is  a  plausible  view,  the  High  Court  will  not  be  

justified in reversing it merely because a different view is  

possible.  Elaborating further it has been ruled that while  

deciding  an  appeal  against  acquittal,  the  power  of  the  

appellate court is no less than the power exercised while  

hearing  appeals  against  conviction.  In  both  types  of  

1 (2009) 10 SCC 636 2 (2006) 10 SCC 313

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appeals, the power exists to review the entire evidence.  

However,  one  significant  difference  is  that  an  order  of  

acquittal will not be interfered with, by an appellate court,  

where the judgment of the trial court is based on evidence  

and the view taken is reasonable and plausible. It will not  

reverse the decision of the trial court merely because a  

different  view  is  possible.  The  appellate  court  will  also  

bear in mind that there is a presumption of innocence in  

favour of the accused and the accused is entitled to get  

the benefit of any doubt.  

12. In  Ramesh Babulal Doshi v.  State of Gujarat3,  

this Court has taken the view that while considering the  

appeal  against  acquittal,  the  appellate  court  is  first  

required to seek an answer to the question whether the  

findings of the trial court are palpably wrong, manifestly  

erroneous or demonstrably unsustainable and if the court  

answers the above question in the negative, the acquittal  

cannot be disturbed.  In  Ganpat v.  State of Haryana4,  

after referring to earlier authorities certain principles have  

been culled out. They read as follows:-

3 (1996) 9 SCC 225 4 (2010) 12 SCC 59

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“15. The following principles have to be kept in  mind by the appellate court while dealing with  appeals,  particularly,  against  an  order  of  acquittal:

(i) There is no limitation on the part of  the  appellate  court  to  review  the  evidence  upon  which  the  order  of  acquittal is founded and to come to its  own conclusion.

(ii) The appellate court can also review  the trial court’s conclusion with respect  to both facts and law.

(iii)  While  dealing  with  the  appeal  preferred by the State, it is the duty of  the  appellate  court  to  marshal  the  entire  evidence  on  record  and  by  giving  cogent  and  adequate  reasons  may  set  aside  the  judgment  of  acquittal.

(iv)  An  order  of  acquittal  is  to  be  interfered  with  only  when  there  are  ‘compelling  and  substantial  reasons’  for  doing  so.  If  the  order  is  ‘clearly  unreasonable’,  it  is  a  compelling  reason for interference.

(v)  When  the  trial  court  has  ignored  the evidence or  misread the material  evidence  or  has  ignored  material  documents  like  dying  declaration/report  of  ballistic  experts,  etc.  the appellate  court  is  competent  to  reverse  the  decision  of  the  trial  court  depending  on  the  materials  placed.”

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13. In  State of Punjab v.  Karnail  Singh5,  the Court  

opined that the paramount consideration of the court is to  

ensure  that  miscarriage  of  justice  is  prevented.  A  

miscarriage of justice which may arise from acquittal of  

the  guilty  is  no  less  than  from  the  conviction  of  an  

innocent. In a case where admissible evidence is ignored,  

a duty is cast upon the appellate court to reappreciate the  

evidence even where the accused has been acquitted, for  

the  purpose  of  ascertaining  as  to  whether  any  of  the  

accused committed any offence or not.  The aforestated  

principles  have  been  reiterated  in  Jugendra  Singh  v.  

State  of  Uttar  Pradesh6 and  Basappa  v.  State  of  

Karnataka7.

14. Keeping in view the aforesaid enunciation of the legal  

principles we have to scrutinize whether the appreciation  

of  the  evidence  by  the  learned  trial  Judge  was  so  

unacceptable  having  not  been  properly  marshalled  and  

hence,  it  was  the  obligation  of  the  High  Court  to  

reappreciate the evidence and record a conviction.  Before  

we proceed to delve into the grounds of interference by  5 (2003) 11 SCC 271 6 (2012) 6 SCC 297 7 (2014) 5 SCC 154

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the  High  Court  in  a  judgment  of  acquittal  within  the  

parameters indicated hereinabove, we think it appropriate  

to refer to the post mortem report of the deceased Siria @  

Shriram.   Dr.  Arun  Kumar  Srivastava,  PW-13,  has  

conducted the autopsy on the dead body and in his report,  

Ex. P-32, he has recorded the following findings:-  

“Full thickness continuous patch of burnt area  with blackening and most of the skin area over  front of chest is in form of roasted patches of  skin.  Burn area over chest is bordered with red  area of skin of 1 cm thickness.  This burnt area  extends from mentum, sub mental region and  extending  laterally  to  both  sub  mandibular  region,  going  downwards  the  burnt  area  enlarges  over  front  and  sides  of  neck  over  suprasternal  notch.   Then burnt area laterally  beyond lateral border of sternum measuring 29  cm.   Maximum  vertical  length  and  broadest  area is  14 cm.  there are 3 lacerated wounds  situated in this burnt area.  

1. Lacerated wound – obliquely placed over  left  4th intercostals space close to lateral  border of  sternum 3 cm x 1 cm x 1 cm  depth.  

2. Lacerated  wound  over  sternum  close  to  lateral border of sternum 1 cm x ½ cm x  skin deep.  

3. Lacerated  wound  medical  to  lacerated  wound no. 2, ½ cm x ¼ cm over sternum.  Skin deep.

No foreign body found in these wounds.  

Roaster patch of burn mark over left hand with  blackening 3 cm x 1.5 cm.  Dorsally and distally  

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placed over metacarpal bone in relation to left  index finger.”  

15. According to the evidence of  the autopsy surgeon,  

the deceased died due to extensive haemorrhage, shock  

and lung compression  and  the  injuries  were  caused by  

explosive substance.  On a perusal of the testimony of PW-

13 and the injuries sustained by the deceased, there can  

be  no  trace  of  doubt  that  the  death  was  homicidal  in  

nature  and  was  caused  by  explosive  substance.   It  is  

manifest  from the record that  other  witnesses had also  

suffered injuries in the occurrence.  As is noticed, Ratta,  

PW-7,  Rukmanibai,  PW-14,  Rambai,  PW-15 and Heeralal,  

PW-16,  who  are  related  to  the  deceased  are  the  eye  

witnesses  and  they  have  supported  the  prosecution  

version.    All  the  witnesses  have  suffered  injuries.  

Heeralal,  PW-16  as  per  the  treating  physician,  had  

suffered blast injury over dorsal aspect of right leg with  

blackening.   He  was  advised  for  X-ray  of  right  leg.  

Rukmanibai, PW-14, had sustained an incised wound over  

the left hand Anteriorly (Posterior).  From the base of 5th  

metacarpal  to head of 2nd metacarpal  30½  x ¼ x skin  

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deep muscles partially cut, abrasion over the back of left  

wrist  ¼”  x  ¼”,  and  abrasion  over  the  left  leg  lower  

anterior  1/3” x ¼”.   As per the injury report, injury no. 1  

was caused by sharp object and the other injuries were  

caused  by  hard  and  blunt  object.   Ratta,  PW-7  had  

sustained abrasion over the left leg at tibial luburosity 1  

½” x 1”.  All  the injuries had been caused by hard and  

blunt object.  The other witnesses similarly had sustained  

injuries.   The injuries on the body of the eye witnesses  

have  been  proven  by  PW-12  and  supported  by  MLC  

reports.  

16. Having noted the injuries suffered by the deceased  

and the witnesses,  it  is  to be examined what has been  

deposed  by  the  prosecution  witnesses  that  have  been  

given credence to by the High Court disagreeing with the  

view expressed by the learned trial Judge.  As has been  

stated earlier, eye witnesses are Ratta, PW-7, Rukmanibai,  

PW-14, Rambai, PW-15 and Heeralal, PW-16.  As per the  

evidence  of  Ratta,  PW-7,  the  accused  persons,  namely,  

Jodhan,  Ramswaroop,  Bherosingh  @  Bhinua,  Babbu  @  

Babulal, Natthu, Mangal Singh and Kanchhedi came near  

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his house and abused in filthy language.  The deceased,  

Siria, came and objected about the abuses being hurled by  

Mangal Singh who immediately threw a hand made bomb  

over  the  chest  of  Siria  who  sustained  injuries.   Jodhan  

threw  a  handmade  bomb  on  Heeralal,  PW-16,  and  the  

other accused persons assaulted the injured persons.  As  

per  the  prosecution  version,  the  villagers  came on  the  

spot  and caught hold of  Mangal  Singh and Babulal  and  

confined  them  in  Siria’s  house.   Ratta  lodged  an  FIR,  

Exhibit  P-24,  and  brought  injured  Siria,  Heeralal  and  

Rukmanibai and others to the hospital.  Siria @ Shriram  

was declared brought dead by the Doctor and as has been  

stated earlier, other injured persons availed treatment.   

17. As per the evidence brought on record, the incident  

had taken place near the house of the deceased and the  

witnesses.  The criticism that has been advanced against  

these  witnesses  is  to  the  effect  they  are  interested  

witnesses  and  hence,  their  version  does  not  deserve  

acceptance is sans merit, for they are the witnesses who  

were there at the spot and sustained injuries.  They are  

close relatives and they have stood firm despite incisive  

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cross-examination.  There  can  be  no  cavil  over  the  

proposition  that  when  the  witnesses  are  related  and  

interested, their testimony should be closely scrutinized,  

but  as  we  find,  nothing  has  been  elicited  in  the  cross-

examination  to  discredit  their  version.   On  a  studied  

scrutiny of  their  evidence,  it  can be said with certitude  

that they have lent support to each other’s version in all  

material particulars.  There are some minor contradictions  

and  omissions  which  have  been  emphasised  by  the  

learned trial Judge.  The High Court has treated the said  

discrepancies  and  the  minor  contradictions  as  natural.  

That  apart,  their  evidence  also  find  support  from  the  

medical evidence and the initial allegations made in the  

FIR.   The  High  Court  has  opined  that  there  is  no  

inconsistency in their version and on a perusal of the said  

evidence,  we  find  there  is  absolutely  no  inconsistency  

which will compel a court of law to discard their version.  

The  learned  trial  Judge,  as  is  evincible,  has  attached  

immense emphasis to such omissions and contradictions  

which, according to the High Court, with which we concur,  

are absolutely insignificant and trivial.  It is also perceived  

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that the learned trial Judge has given notable stress on the  

fact that the accused persons and the informant were in  

inimical terms due to non-voting by the informant’s party  

in their favour.  In our considered opinion, in the present  

case, the same cannot be a ground for not placing reliance  

on the eye witnesses who have supported the prosecution  

version.  

18. It is emphatically submitted by Mr. Sharma, learned  

counsel  for  the  appellant  that  when  the  witnesses  are  

interested witnesses and other independent witnesses had  

turned hostile, the High Court should not have relied on  

such witnesses and overturned the judgment of acquittal  

by the learned trial Judge.   First, we shall deal with the  

credibility of related witnesses.  In Dalip Singh v. State  

of Punjab8, it has been observed thus:-

“We  are  unable  to  agree  with  the  learned  Judges of the High Court that the testimony of  the two eyewitnesses requires corroboration. If  the foundation for such an observation is based  on the fact that the witnesses are women and  that  the  fate  of  seven  men  hangs  on  their  testimony,  we  know  of  no  such  rule.  If  it  is  grounded on the reason that they are closely  related  to  the  deceased  we  are  unable  to  concur.  This  is  a  fallacy  common  to  many  

8 AIR 1953 SC 364

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criminal cases and one which another Bench of  this Court endeavoured to dispel in Rameshwar  v. State of Rajasthan9.”

In the said case, it has also been further observed:-

“A  witness  is  normally  to  be  considered  independent  unless  he  or  she  springs  from  sources which are likely to be tainted and that  usually  means  unless  the  witness  has  cause,  such as enmity against the accused, to wish to  implicate  him  falsely.  Ordinarily  a  close  [relative] would be the last to screen the real  culprit  and  falsely  implicate  an  innocent  person. It is true, when feelings run high and  there is personal cause for enmity, that there is  a  tendency  to  drag  in  an  innocent  person  against  whom a  witness  has  a  grudge  along  with the guilty, but foundation must be laid for  such  a  criticism  and  the  mere  fact  of  relationship far from being a foundation is often  a sure guarantee of truth.”

19. In Hari Obula Reddy v. State of A.P.10, the Court  

has  ruled  that  evidence  of  interested  witnesses  per  se  

cannot be said to be unreliable evidence.  Partisanship by  

itself is not a valid ground for discrediting or discarding  

sole testimony.  We may fruitfully reproduced a passage  

from the said authority:-

“An invariable rule that interested evidence can  never  form  the  basis  of  conviction  unless  corroborated to  a  material  extent  in  material  particulars by independent evidence. All that is  necessary  is  that  the  evidence  of  interested  

9 AIR 1952 SC54 10 (1981) 3 SCC 675

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witnesses  should  be  subjected  to  careful  scrutiny and accepted with caution. If on such  scrutiny,  the interested testimony is  found to  be intrinsically reliable or inherently probable,  it  may,  by  itself,  be  sufficient,  in  the  circumstances of the particular case, to base a  conviction thereon.”

20. The principles that have been stated in number of  

decisions are to the effect that evidence of an interested  

witness can be relied upon if it is found to be trustworthy  

and credible.  Needless to say, a testimony, if after careful  

scrutiny  is  found  as  unreliable  and  improbable  or  

suspicious it  ought to  be rejected.   That  apart,  when a  

witness has a motive or makes false implication, the Court  

before  relying  upon  his  testimony  should  seek  

corroboration  in  regard  to  material  particulars.   In  the  

instant case, the witnesses who have deposed against the  

accused  persons  are  close  relatives  and  had  suffered  

injuries in the occurrence.  Their presence at the scene of  

occurrence cannot be doubted, their version is consistent  

and nothing has been elicited in the cross-examination to  

shake their  testimony.   There are some minor or  trivial  

discrepancies, but they really do not create a dent in their  

evidence warranting to treat the same as improbable or  

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untrustworthy.  In this context, it is requisite to quote the  

observations made by the Court in  State of Punjab v.  

Jagir Singh11:-

“A criminal trial is not like a fairy tale wherein  one is free to give flight to one’s imagination  and fantasy. It concerns itself with the question  as to whether the accused arraigned at the trial  is guilty of the crime with which he is charged.  Crime is an event in real life and is the product  of  interplay  of  different  human  emotions.  In  arriving at the conclusion about the guilt of the  accused  charged  with  the  commission  of  a  crime, the court has to judge the evidence by  the yardstick of probabilities, its intrinsic worth  and the animus of witnesses. Every case in the  final  analysis  would have to depend upon its  own  facts.  Although  the  benefit  of  every  reasonable  doubt  should  be  given  to  the  accused,  the  courts  should  not  at  the  same  time  reject  evidence  which  is  ex  facie  trustworthy on grounds which are fanciful or in  the nature of conjectures.”

21. Tested on the backdrop of aforesaid enunciation of  

law,  we  are  unable  to  accept  the  submission  of  the  

learned counsel for the appellant that the High Court has  

fallen into error by placing reliance on the evidence of the  

said  prosecution  witnesses.   The submission  that  when  

other witnesses have turned hostile, the version of these  

witnesses  also  should  have  been  discredited  does  not  

11 (1974) 3 SCC 277

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commend acceptance, for there is no rule of evidence that  

the testimony of the interested witnesses is to be rejected  

solely  because  other  independent  witnesses  who  have  

been  cited  by  the  prosecution  have  turned  hostile.  

Additionally, we may note with profit that these witnesses  

had sustained injuries and their  evidence as we find is  

cogent and reliable.   A testimony of  an injured witness  

stands  on  a  higher  pedestal  than  other  witnesses.   In  

Abdul Sayeed v. State of M.P.12, it has been observed  

that the question of weight to be attached to the evidence  

of a witness that was himself injured in the course of the  

occurrence has been extensively discussed by this Court.  

Where  a  witness  to  the  occurrence  has  himself  been  

injured in the incident, the testimony of such a witness is  

generally considered to be very reliable, as he is a witness  

that comes with a built-in guarantee of his presence at the  

scene  of  the  crime  and  is  unlikely  to  spare  his  actual  

assailant(s) in order to falsely implicate someone.  It has  

been also reiterated that convincing evidence is required  

to discredit an injured witness.  Be it stated, the opinion  

12 (2010) 10 SCC 259

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was  expressed  by  placing  reliance  upon  Ramlagan  

Singh v. State of Bihar13, Malkhan Singh v. State of  

U.P.14, Vishnu v. State of Rajasthan15 and Balraje v.  

State of Maharashtra16 and Jarnail Singh v. State of  

Punjab17.

22. From  the  aforesaid  summarization  of  the  legal  

principles,  it  is  beyond doubt  that  the testimony of  the  

injured witness has its own significance and it has to be  

placed reliance upon unless there are strong grounds for  

rejection  of  his  evidence  on  the  basis  of  major  

contradictions and inconsistencies.   As has been stated,  

the injured witness has been conferred special status in  

law  and  the  injury  sustained  by  him  is  an  inbuilt-  

guarantee  of  his  presence  at  the  place  of  occurrence.  

Thus perceived, we really do not find any substance in the  

submission of the learned counsel for the appellant that  

the  evidence  of  the  injured  witnesses  have  been  

appositely  discarded  being  treated  as  untrustworthy  by  

the learned trial Judge.  

13 (1973) 3 SCC 881 14 (1975) 3 SCC 311 15 (2009) 10 SCC 477 16 (2010) 6 SCC 673 17 (2009) 9 SCC 719

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23. One of the contentions that has been highlighted by  

Mr. Sharma is that there was no justification on the part of  

the High Court to convict the present appellant in aid of  

Section  149  IPC,  for  he,  as  per  the  evidence  of  the  

prosecution,  had  not  done  any  overt  act  to  cause  any  

injury to the deceased.  The aforesaid submission assumes  

the  proposition  that  even  if  the  factum  of  unlawful  

assembly  is  proven  by  the  prosecution,  then  also  the  

Court is required to address the individual overt acts of  

each of the accused.  In  Baladin v. State of U.P.18,  it  

was  held  that  mere  presence  in  an  assembly  does  not  

make  such  a  person  member  of  an  unlawful  assembly  

unless it is shown that he had done something or omitted  

to do something which would make him a member of an  

unlawful  assembly.   The  observations  recorded  by  the  

three-Judge Bench in  the said case was explained by a  

four-Judge Bench in  Masalti v. State of U.P.19 wherein  

the larger Bench distinguished the observations made in  

Baladin (supra)  and  opined  that  the  said  observations  

must be read in the context of special facts of the case.  

18  AIR 1956 SC 181 19  AIR 1965 SC 202

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The dictum that has been laid down Masalti (supra) is to  

the following effect:

“....it would not be correct to say that before a  person is held to be a member of an unlawful  assembly,  it  must  be  shown  that  he  had  committed some illegal overt act or had been  guilty of some illegal omission in pursuance of  the  common  object  of  the  assembly.  In  fact,  Section 149 makes it clear that if an offence is  committed  by  any  member  of  an  unlawful  assembly in prosecution of the common object  of that assembly, or  such as the members of  that  assembly  knew  to  be  likely  to  be  committed in prosecution of that object, every  person who, at the time of the committing of  that  offence,  is  a  member  of  the  same  assembly,  is  guilty  of  that  offence;  and  that  emphatically  brings out  the principle  that  the  punishment prescribed by Section 149 is  in a  sense vicarious and does not  always proceed  on the basis that the offence has been actually  committed  by  every  member  of  the  unlawful  assembly.”

 24. In  Bhargavan  v.  State  of  Kerala20,  it  has  been  

held:-

“…  It  cannot  be  laid  down  as  a  general  proposition of  law that  unless an overt  act  is  proved against a person, who is alleged to be a  member of an unlawful assembly, it cannot be  said that he is a member of an assembly. The  only  thing  required  is  that  he  should  have  understood that the assembly was unlawful and  was likely to commit any of the acts which fall  within the purview of Section 141 IPC.”

20  (2004) 12 SCC 414

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25. In this context, we may usefully reproduce a passage  

from Ramachandran v. State of Kerala21:

“Thus, this Court has been very cautious in a  catena  of  judgments  that  where  general  allegations are made against a large number of  persons the court would categorically scrutinise  the evidence and hesitate to convict the large  number of persons if the evidence available on  record is vague. It is obligatory on the part of  the  court  to  examine  that  if  the  offence  committed  is  not  in  direct  prosecution of  the  common  object,  it  yet  may  fall  under  the  second part of Section 149 IPC, if the offence  was such as the members knew was likely to be  committed. Further inference has to be drawn  as  to  what  was  the  number  of  persons;  how  many of them were merely passive witnesses;  what  were  their  arms  and  weapons.  The  number and nature of injuries is also relevant to  be  considered.  ‘Common object’  may also  be  developed at the time of incident.”

26. On the bedrock of the aforesaid pronouncement of  

law, the submission canvassed by Mr.  Sharma does not  

merit any consideration inasmuch as the prosecution has  

been able to establish not only the appellant’s presence  

but  also  his  active  participation  as  a  member  of  the  

unlawful assembly.  He might not have thrown the bomb  

at the deceased, but thereby he does not cease to be a  

member  of  the unlawful  assembly  as  understood within  

21  (2011) 9 SCC 257

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the ambit of Section 149 IPC and there is ample evidence  

on record to safely conclude that all the accused persons  

who have been convicted by the High Court had formed  

an unlawful  assembly and there was common object  to  

assault  the  deceased  who  succumbed  to  the  injuries  

inflicted on him.   Thus analysed,  the submission enters  

into the realm of total insignificance.   

27. At this juncture, we are obliged to deal with the plea  

of the accused that Babulal was confined in the house of  

the deceased and that was the genesis of occurrence.  On  

a scrutiny of the evidence it is found that accused Mangal  

Singh and Babulal were caught on the spot and confined  

to Siria’s house, wherefrom the police apprehended them  

and got  them admitted  in  hospital.  Babulal  died  in  the  

hospital. The High Court on scrutiny of the evidence has  

found that there is ample evidence on record to prove that  

the accused persons were aggressors and it is they who  

arrived  at  the  place  of  occurrence  and  Mangal  hurled  

abuses and threw the handmade bomb on the chest of the  

deceased, Shriram.  Thereafter, the evidence shows that  

Mangal and Babulal got injuries.  The learned trial Judge  

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has been guided that  there was a free fight.   The said  

finding  is  demonstrably  erroneous  inasmuch  as  the  

prosecution  has  clearly  established  the  fact  that  the  

accused persons were the aggressors.  After the episode  

of  bombing took place there was pelting of  stones and  

confinement.   It  is  the accused persons who had come  

armed with lethal weapons and it is Mangal who threw the  

bomb on the chest of the deceased only because he had  

objected to the hurling of abuses.  The learned trial Judge,  

after taking note of the evidence that Mangal and Babulal  

were confined in a room, had opined that there was a free  

fight.  The High Court on reappreciation and analysis of  

the evidence has found that the accused persons were the  

aggressors.  That apart, as the entire story of prosecution  

would  show,  the  accused  persons  armed  with  lethal  

weapons had gone to the house of deceased and hurled  

abuses in filthy language and on being objected to one of  

them,  namely,  Mangal  Singh  with  pre-determined  mind  

threw the bomb on the chest of the deceased.  Regard  

being had to the aforesaid evidence,  we are inclined to  

agree with the view expressed by the High Court that it is  

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a  case  where  the  appellant  deserved  to  be  convicted  

under Section 302 in aid of Section 149 of the IPC.    

28. Another  limb  of  submission  which  has  been  

propounded  by  Mr.  Sharma is  that  the  prosecution  has  

deliberately  not  examined  other  independent  material  

witnesses who were present at the spot and,  therefore,  

the whole case of prosecution becomes unacceptable.  In  

this context,  it  would be profitable to refer to what has  

been held in State of A.P. v. Gian Chand22.  In the said  

case, the three-Judge Bench has opined that:-

“14. ... Non-examination of a material witness  is  again  not  a  mathematical  formula  for  discarding  the  weight  of  the  testimony  available  on  record  howsoever  natural,  trustworthy  and  convincing  it  may  be.   The  charge of withholding a  material witness from  the  court  levelled  against  the  prosecution  should be examined in the background of the  facts and circumstances of each case so as to  find  whether  the  witnesses  are  available  for  being  examined  in  the  court  and  were  yet  withheld by the prosecution.”  

It has been further ruled therein that the Court is required  

to first consider and assess the credibility of the evidence  

available  on  record  and  if  the  Court  finds  that  the  

22  (2001) 6 SCC 71

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evidence adduced is  worthy of  credence,  the testimony  

has to be accepted and acted upon though there may be  

other  witnesses  available,  who  could  also  have  been  

examined  but  not  examined.  In  Takhaji  Hiraji  v.  

Thakore Kubersing Chamansingh23, it has been opined  

that if the material witness, who unfolds the genesis of the  

incident or an essential part of the prosecution case, not  

convincingly brought to the fore otherwise, or where there  

is a gap or infirmity in the prosecution case which could  

have been supplied or made good by examining a witness  

who  though  available  is  not  examined,  the  prosecution  

case can be termed as suffering from a deficiency and  

withholding of such a material  witness would oblige the  

Court  to  draw  an  adverse  inference  against  the  

prosecution,  but  if  there  is  an  overwhelming  evidence  

available,  and which can be placed reliance upon,  non-

examination of such other witnesses may not be material.  

Similarly,  in  Dahari  v.  State of  U.P.24,  while  dwelling  

upon the issue of non-examination of material witnesses,  

it has been succinctly expressed that when the witness is  

23  (2001) 6 SCC 145 24  (2012) 10 SCC 256

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not  the  only  competent  witness,  who would  have been  

fully capable of explaining the factual score correctly and  

the prosecution stood fully corroborated by the medical  

evidence and the testimony of other reliable witnesses, it  

would  be  inappropriate  to  draw  an  adverse  inference  

against the prosecution.   

29. In the instant case, the witnesses, as the High Court  

has found and we have no reason to differ,  are reliable  

and have stood embedded in their version and remained  

unshaken. They have vividly deposed about the genesis of  

occurrence,  the  participation  and  involvement  of  the  

accused persons in the crime and the injuries inflicted on  

the  deceased,  and  on  each  of  them.   Therefore,  non-

examination of any other witnesses who might have been  

available on the scene of occurrence, would not make the  

case of the prosecution unacceptable.  On that score, the  

case  of  the  prosecution  cannot  be  thrown  overboard.  

Thus,  we  are  constrained  to  reject  the  submission  

canvassed  by  Mr.  Sharma,  learned  counsel  for  the  

appellant.  

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30. In  the  ultimate  conclusion,  we  hold  that  laying  

emphasis on the minor discrepancies and omissions in the  

evidence  of  prosecution  witnesses,  who  are  natural  

witnesses  to  the  occurrence  and  giving  stress  on  

irrelevant aspects and ultimately to record the acquittal,  

by  no  stretch  of  imagination,  can  be  regarded  as  a  

plausible or possible view expressed by the learned trial  

Judge and, therefore, we are of the convinced opinion that  

the High Court  is  justified in  reversing the judgment of  

acquittal to one of conviction.   

31. Resultantly,  the appeal,  being devoid of any merit,  

has to pave the path of dismissal, and we so direct.  

.............................J. (Dipak Misra)

..........................., J.                       (N.V. Ramana)   

New Delhi April 08, 2015

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